State v. Allegro
| Decision Date | 29 January 2008 |
| Docket Number | A-119 September Term 2006. |
| Citation | 939 A.2d 754,193 N.J. 352 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. William J. ALLEGRO, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Barbara N. Suppa, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney).
An early morning fire in a garage apartment in the Borough of Bradley Beach led to the discovery of a marijuana growing facility on the premises. That discovery resulted in defendant William J. Allegro's convictions and sentence for maintaining or operating a controlled dangerous substance production facility and for possession of a controlled dangerous substance with intent to distribute. Defendant's convictions and sentence were affirmed on appeal and his petition for certification was denied. 175 N.J. 547, 816 A.2d 1048 (2003). Defendant then petitioned for post-conviction relief (PCR), as provided in Rules 3:22-1 to -12, alleging that his trial counsel was ineffective in eighteen separate respects. The PCR court first denied defendant's petition. Defendant sought reconsideration and, focusing exclusively on an alleged failure by defendant's trial counsel to interview and produce additional witnesses at defendant's trial, the PCR court vacated defendant's convictions and ordered a new trial.
On the State's application, a divided Appellate Division panel reversed and reinstated defendant's convictions and sentence, concluding that defendant's petition for post-conviction relief failed to satisfy the two prongs of the Strickland/Fritz ineffective assistance of counsel standard.1 Based on the dissent in the Appellate Division, defendant filed an appeal as of right before this Court. N.J. Const. art. VI, § V, ¶ 1(b); R. 2:2-1(a)(2). We affirm in part and reverse in part the judgment of the Appellate Division.
At 7:19 a.m. on February 21, 1999, there was a fire in a garage apartment located at 408 Monmouth Avenue in the Borough of Bradley Beach; that garage apartment was leased to defendant. Patrolman Michael Ricciardi of the Bradley Beach Police Department, having been dispatched to the scene of the fire, observed flames stretching from the garage on the ground floor to the second floor apartment. Thinking that "the fire might be suspicious[,]" he called the fire marshal and his own police lieutenant. Bradley Beach's Code Enforcement Officer and Fire Marshal, Keith DiLello, responded to Ricciardi's call. DiLello assisted the firefighters in combating the blaze and observed a concentration of fire in the first floor garage that extended to the second floor apartment. However, DiLello did not enter the second floor apartment until the fire was under control and he had the opportunity to start his own investigation.
When DiLello did start his investigation he was accompanied by Ricciardi, as was the practice of the Bradley Beach Police Department. Once in the second floor apartment, DiLello and Ricciardi observed fluorescent lights, irrigation pumps, high wattage light bulbs, potted plants and bags of what was later determined to be marijuana, but no furniture. Although he had been unaware of the presence of marijuana plants on the premises and he had not smelled burning marijuana, Ricciardi's initial reaction was striking:
[T]he first thing that actually came to mind was [it] looks like a rain forest in here. Fluorescent lights, pumps, irrigation, big 800[-]watt light bulbs. All different types of things, potted plants. Some of them had their stems, you know, the leaves burnt off, but additional ones had the leaves still on there.
Ricciardi had no doubt of what he saw: he immediately recognized the plants to be marijuana and the equipment to be part of an indoor growing facility. After notifying his lieutenant of what he had found, Ricciardi, with DiLello's assistance, removed the plants and lighting equipment.
In the interim, Mark Christensen, a volunteer fireman, made his own discovery. Christensen, who had been combing the apartment for a misplaced fire department axe, was searching in a pile of debris. According to his testimony, while looking through that pile, he moved a box, the box popped opened, and he saw what he thought was marijuana; later tests disclosed that the box in fact contained eight pounds of marijuana. Continuing his search, Christensen found and opened a similar box nearby, and it too contained marijuana. When he called out for the police, Ricciardi responded and seized both boxes of marijuana.2
The proofs at trial against defendant were overwhelming. In addition to the evidence retrieved from the scene of the fire, the State presented the testimony of Muruvvet Reyal, the owner/landlord of 408 Monmouth Avenue; William Nutting, the renter who lived in the house at the front of the property, and DiLello. Reyal testified that, at the time of the fire, defendant was the renter of the garage apartment. She stressed that defendant was often tardy in his rent payments, and that she regularly had to knock on the door of the garage apartment and demand the rent from defendant. As far as Reyal knew, defendant lived in the garage apartment.
That view also was shared by Nutting who, as the resident of the home in front of the garage, described defendant's comings-and-goings to and from the garage apartment. Nutting explained that defendant would arrive at the garage apartment late at night and often leave almost immediately thereafter. He testified that he thought defendant was living with a girlfriend, but that he had last seen defendant at the premises the night before the fire occurred. Nutting testified to his belief that, at the time of the fire, defendant lived in the garage apartment.
DiLello's testimony covered two distinct areas. First, in his capacity as the Borough's fire marshal, DiLello testified as to the cause and origin of the fire. He explained that an electrical overload caused the electrical wiring to overheat, ultimately igniting a fire in the garage area that burned up into the second floor apartment. Second, in his capacity as the Borough's code enforcement officer, DiLello testified that in 1994 he had issued a certificate of occupancy for the garage apartment to defendant's brother, James, and that the certificate of occupancy had been amended in 1998 — the year before the fire — to add defendant as a listed occupant of the premises.
The most damning testimony in the State's case, however, was a recorded telephone call from someone who identified himself as "Skip" Allegro. Detective Lieutenant Richard Lizzano of the Bradley Beach Police Department testified that, on February 24, 1999 — three days after the fire — he received a telephone call from someone who specifically asked to speak with Det. Lt. Lizzano and who identified himself using defendant's nickname, "Skip;"3 following the Bradley Beach Police Department's procedure, that telephone call was recorded in its entirety. When Det. Lt. Lizzano pressed for more identifying data from the caller, he referred to himself as "the one you are looking for." Rejecting Det. Lt. Lizzano's request that he turn himself in, the caller represented that he was "already gone[,]" that he was "already out of state[,]" and that he was "not going to call [Det. Lt. Lizzano] until after [he] was out of state." The following exchange ensued:
. . . .
[(Emphasis supplied).]
Defendant did not testify on his own behalf. He did, however, tender the testimony of his brother, James, who testified that he had rented the garage apartment, that he had lived there for several years, that he had moved to Ocean Township and taken his furniture and belongings with him, and that his brother — defendant — had moved in to the garage apartment. He explained that, while he lived in the garage apartment, the electrical service was in his name, but that he had "switched" the service to avoid being responsible for two electrical hook-ups at two separate locations simultaneously. James also testified that defendant had continued to live in the garage apartment for approximately one year, but had then moved to Belmar, near the time when James had the electrical service "switched" and some months before the fire.
Defendant also tendered the testimony of Jennifer Steibel, who explained that, although no longer involved with defendant, she had been dating defendant at the time of the fire and that she and defendant had remained together starting the evening of February 20, 1999 — the night before the fire — into the next day. She also testified that, on the day of the fire, defendant had informed her that there had been a fire at the garage apartment "he used to live at in Bradley Beach."
The jury returned guilty verdicts on both...
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